Drawing the Line Between Civil and Religious Rights

Mathew Staver, the founding chairman of Liberty Counsel, and his wife Anita, its president, pay themselves a total of more than $300,000 a year, according to the tax filings of the self-described “independent Christian mission.” As I watched the early days of the Kim Davis melodrama, I thought the Stavers were a bargain at that price.

Liberty Counsel, based in Orlando, Fla., has long inhabited the far fringe of the religious right’s litigating landscape, taking up cases and causes that more mainstream legal organizations avoid. Liberty Counsel represents Ms. Davis, the Rowan County, Ky., clerk who claims her faith forbids her to issue marriage licenses to same-sex couples, and it first seemed to me that Mr. Staver, standing by his client’s side and writing her public statements, had succeeded quite brilliantly in giving a human face to the backlash against the Supreme Court’s marriage decision. Ms. Davis, going off to jail rather than violate her principles, was the modern-day martyr standing up against a world turned upside-down, a personification of those who, in the words of Justice Samuel A. Alito’s dissenting opinion, “are unwilling to assent to the new orthodoxy.”

But as the controversy winds down, it occurs to me that while Mr. Staver may not be overpaid, he has most likely overreached. People who are generally sympathetic to the private purveyors of goods and services who don’t want to associate with same-sex marriages — the bakers who won’t bake and the photographers who won’t take pictures — are nonetheless disconcerted, even offended, by the thought of public officials who claim the right to pick and choose which public duties to carry out.

It seems a simple enough principle. In 1998, a panel of the federal appeals court in Chicago rejected a police officer’s claim that his religious objection to abortion entitled him to an exemption from standing guard at an abortion clinic on his beat, as he had been assigned to do. Judge Richard A. Posner, who, as readers of this column know, I regard as a font of judicial common sense, explained in a concurring opinion that while the police officer was “entitled to his view,” he was “not entitled to demand that his police duties be altered to conform to his view “any more than “a firefighter is entitled to demand that he be entitled to refuse to fight fires in places of worship of religious sects that he regards as satanic.”

The rally at which the just-released Ms. Davis appeared with Mike Huckabee, a candidate for the Republican presidential nomination (with another candidate, Ted Cruz, lurking off center stage) in front of a cross-waving crowd that looked an awful lot like a mob, was downright creepy. Other Republican candidates distanced themselves quickly. “This was not the right job for her,” Donald Trump told Bill O’Reilly on Fox News. “Whether you like the decision or not, you have to go along with the Supreme Court. That’s the way it is.”

Gov. John Kasich of Ohio said that “I respect the fact that this lady doesn’t agree, but she’s also a government employee. She’s not running a church.”

Conservative commentators have peeled off. “Kim Davis is no Rosa Parks,” Michael Gerson wrote in The Washington Post. “There is no serious case to be made for the right of public officials to break laws they don’t agree with, even for religious reasons.” Another conservative Washington Post columnist, Kathleen Parker, wrote that “the clerk’s job is to execute the law of the land, end of story.” Even Ed Whelan of National Review conceded that “I share the concerns of many conservatives that Kim Davis’s battle is not well picked to advance the cause of religious liberty.”

As the Kim Davis affair ends with wedding bells ringing — same-sex couples in Rowan County are now able to get their marriage licenses signed by her deputies — there is a strong temptation to forget the whole thing. But actually, we should stop and thank Kim Davis and her lawyer. They have provided us with a clarifying moment, one that has in fact been overdue, by requiring us to consider where to draw the line between religious rights for some and civil rights for others. For all the reasons to object to a public policy — ideological, conscience-based, a personal preference strongly held — should claims based on religion receive more respect than the others? If the answer is yes, is it yes without limits?

A decision that teed up those questions almost perfectly was issued late last month by Judge Richard J. Leon of the Federal District Court in Washington, in a case called March for Life v. Burwell. March for Life puts on an anti-abortion rally and march in Washington every January to mark the anniversary of the Supreme Court’s decision in Roe v. Wade. It is a nonprofit organization, but doesn’t claim to be a religious nonprofit of the kind the Obama administration has permitted to opt out of the requirement to provide contraception coverage within an employee health plan. With anti-abortion advocacy its “sole and central tenet,” as Judge Leon put it, March for Life sued the administration to be relieved of having to cover contraceptives that it believes cause what it considers to be abortions.

March for Life thus shares a “moral philosophy” with overtly religious organizations, Judge Leon wrote, and yet the Department of Health and Human Services “has chosen, however, to accommodate this moral philosophy only when it is overtly tied to religious values.” He added: “This is nothing short of regulatory favoritism.” Ruling that the distinction violated March for Life’s Fifth Amendment right to equal protection, Judge Leon issued an injunction forbidding enforcement of the contraception mandate against the organization.

(It’s worth noting that many of the religious nonprofits to which the administration has offered an accommodation — all they have to do is write a letter to the Secretary of Health and Human Services asserting their religious objection — have filed their own lawsuits arguing that the option is inadequate. They object because once they write a letter, the obligation to provide the coverage then passes to their third-party insurers. That makes them still complicit, these organizations argue, in the chain of events that could possibly end with an employee’s choosing to avail herself of the health plan’s free birth control. Every federal appeals court to rule on this argument has rejected it, and the Supreme Court will decide soon after its new term begins whether to hear any of the appeals that are now pending.)

“Regulatory favoritism,” as Judge Leon put it, is a powerful way of describing the problem that results from elevating a religious claim above all others. But the judge stopped short of following that idea to its logical conclusion. In addition to granting March for Life’s equal protection claim, he also ruled in favor of a claim under a federal statute, the Religious Freedom Restoration Act, that two March for Life employees had brought as part of the same lawsuit. Even though the two women, one Catholic and one Protestant, asserted that they would never use the objectionable birth control products, Judge Leon accepted their argument that they should not have to be part of an employee health plan that enabled others to obtain them. But wasn’t the judge himself displaying another version of favoritism? Why should a single employee’s objection, which other employees might plausibly regard as eccentric or just irrelevant, be permitted to block a government program that is supposed to provide a benefit to everyone?

What’s placed now in high relief by many of the current disputes is the tension inherent in religion clauses of the First Amendment. The amendment prohibits the “establishment” of religion while also protecting “the free exercise thereof.” When does government solicitude for religious exercise cross the line into establishment? When does policing of the Establishment Clause’s prohibition go too far and stifle free exercise? There is no easy or obvious answer, and the Supreme Court has never given a consistent one. The relative weight the court has accorded each of the religion clauses shifts over time, reflecting in broad strokes the concerns of the general culture as the tension between the two principles comes to the fore in different ways.

The Roberts court has tilted quite far in the direction of free exercise, to the detriment of the values of pluralism inherent in the establishment clause. Inevitably, if history is any guide, a tipping point will come that causes society to push back and recalibrate the balance. That process may have begun in the clerk’s office in Rowan County, Ky. If so, we may have Kim Davis and her zealous lawyer to thank.